Tuesday, January 10, 2012

Musings: "Suckas!"

I stopped by a Planning Commission hearing last Friday morning to bang my head against the wall, I mean, check out what's happening with Kauai's most lucrative and bountiful agricultural crop: vacation rentals.

Yep, they're all sliding through the permitting process now, with the owners by and large getting the go-ahead to dramatically increase the value of their properties, rake in outrageous revenues, skew the value of ag land and forever change the character of rural communities like Kilauea.

To their credit, staffers in the county attorney's office and planning department have sought to impose a — gasp! — agricultural dedication on ag lots larger than one acre — an idea proposed by attorney Dan Hempey as a way to get farmers on the land and help TVR owners comply with state law.

But the message from the TVR owners — or rather, the attorneys they sent in their stead — was clear: we don't need no stinking farms.

One after another, the attorneys said screw that pesky ag dedication. Ironically, Charley Foster, Hempey's associate, was among them.

Of course they don't want farms — and most particularly, the kind of people who would labor on them — cracking the carefully constructed facade of opulent exclusivity that they market along with the “private beach” accessed via the illegal trails they supposedly built for “maintenance purposes.”

And while I applaud the county for trying, let's get real: can you imagine how a poor farmer might suffer trying to work on land owned by some of these greedy, narcissistic, money-grubbing speculators, most of whom live off-island?

Which brings me to a question: why aren't these applicants required to show up in person, instead of being allowed to send their attorneys? If they're going to benefit so greatly from the generous gift of a special use permit, can't they at least be bothered to trot their butts down to the meeting room, like those of us testifying against them?

I do have to give Michele Hughes credit for showing face, such that it is, though her attorney, Lorna Nishimitsu, did all the talking. But then, I guess Michele figured it was worth a few hours of her time, seeing as how she had two units up for approval. On that day, anyway.

Which raises another question: why can't we limit these hoteliers to no more than one? Cause isn't it kind of hard to believe that they were actually building a house for themselves and didn't know they couldn't operate it as a TVR when they've got multiple units spread around the island? As an interesting aside, the building permits for the Hughes property show a 2,394-square-foot, two-story “barn” and a 470-square-foot “garden shed,” which is, coincidentally, I'm sure, the approximate size as the two TVRs. Amazing how many “ag buildings” are needed by a non-farm.

Which leads me to yet another question, the question that actually should have preceded all other questions: what about the farm dwelling agreement? You know, the document that ag landowners sign under a notary's seal — with the planning director and county attorney affixing their signatures, too — swearing that the house they're building “is located on and used in connection with a farm where agricultural activity provides income to the family occupying the dwelling?” With family defined as “an individual or two or more persons related by blood, marriage or adoption or a group comprising not more than five persons, not related by blood, marriage or by adoption.”

So how, pray tell, do the sleep-20-with-spa mini-resorts like Hale Mana, which was also on the agenda that day, possibly qualify, even if you pretended the steady stream of tourists staying there were a family? And how can one person have more than one unit, seeing as how it's physically impossible to occupy two dwellings at once?

Which raises another question: why didn't the County Council and Mayor move to enforce the farm dwelling agreement against these egregious violators, instead of cowering in the corner and passing a bill legalizing their scams when their attorneys threatened to sue for a “taking?” Cause it sure looks to me like they're the ones doing the “taking,” with both hands, no less.

And aren't these places a blatant violation of the CZO, which defines a dwelling as “a structure used exclusively for residential occupancy and having all necessary facilities for permanent residency;” and single family detached as “a building consisting of only one (1) dwelling unit designed or or occupied by one (1) family?”

I mean, if they can prosecute Councilman Tim Bynum (who voted for the ag TVR bill, btw) for a rice cooker in his family room, surely they can go after those who build resorts on fake farms.

And then there was Laurel Loo, representing an owner at Anini who wanted a permit for the main house and the ADU (additional dwelling unt), too. Gee, I remember when ADUs used to be called “ohana units,” because the Council approved them as a way to provide low-cost housing for permanent island residents. Guess that concept has gone out the window, along with any sense of justice and morality.

Because it's wrong, flat out wrong, to be rewarding people like Bill and Sandy Strong, whose TVR is up for approval by the Commission today, when they intentionally built their houses for resort purposes. I know guys who worked on the Strong house, and it includes elaborate security provisions and fortifications designed to make it attractive as a rental by the paranoid uber rich. What's more, they added on two guest cottages that would have been illegal, except for the covered walkways that connect them to the main house, thus completing the charade that it was all one unit.

Yeah, that's the kind of manure being spread on these faux farms, which in that particular Kilauea neighborhood have actually worked to drive real farms out of business. Did you ever stop to wonder how Will Smith could sell seven acres of ag land with a house for $20 million? It's because his neighbors on the bluff above Kauapea Beach are running luxury mini-hotels.

Which brings me to anther question: shouldn't all the applications in one neighborhood — to use the term loosely — be grouped together so that the Commission might assess the cumulative impact of such uses on a community? As the president of the Kilauea Neighborhood Association pointed out in his testimony on Friday, that agenda alone included more than a dozen TVRs in the Kilauea area; dozens more have been or will be considered at other times. At least, as KNA pleaded, make the developers present their plans to the community before they are rubber stamped for approval.

And then there's this nagging question: how can the county be handing out special permits for TVRs built on CPRs when state law reads “Special permits for land the area of which is greater than fifteen acres or for lands designated as important agricultural lands shall be subject to approval by the land use commission?” Six of the TVRs on last Friday's agenda are on lots larger than 15 acres.

It's not like the county doesn't know about this provision, because on two other applications the staff report states: “Because the subject property is less than 15 acres in size, the Planning Commission does not require final approval by the State Land Use Commission.”

So what gives, guys? Are you just winging it, because you know Protect Our Neighborhood Ohana – the only group holding your feet to the fire — doesn't have the money to challenge this crap in court?

The mayor and certain members of the County Council who approved the ag TVR bill have tried to soothe opponents by cooing, take heart, at least they're being regulated now, and there will never be any more — a platitude now adopted by staff.

But they just don't seem to grasp that the problem lies in how they're being regulated, as well as in the fact that the greedy grabbers got the goodies, and any farmer who decides at some future point that she/he really could use a vacation rental to keep the farm afloat will be shit out of luck.

By then, of course, many of these mini-hotels will have changed hands several times, at great profit, or sold to hotel chains and investment consortiums. And the original developers will be laughing all the way to the bank, saying, “suckas!”

28 comments:

Anonymous
said...

"And aren't these places a blatant violation of the CZO"

10 days, you have 10 days to submit comments for a comprehensive change in the Comprehensive Zoning Ordinances - carefully, read and re-read the sections that you are most concerned with - this is your best opportunity to change laws, period.

TVR's on Ag land angers me. Enough of these phony "turf farms." Somebody has to stop this illegal activity. All of these illegal uber luxury units need to be condemned so that we can grow food. When over 85% of food is imported, we need to grow our own food not create flip quick schemes! Disgusting!

Let me explain to you how the enforcement of the CZO works presently. The Planning Commission has investigators that go around looking for violations and responding to reports. The prosecuting attorney's office has no authority to generate cases, nor does the KPD. The planning commission then sends letters and attempts to make the "violator" pay them money to submit plans and permit applications, which they rubber stamp as long as you pay the planning commission toll. Only when they refuse to pay, the Planning Commission forwards the case to the Prosecutor's Office. This system is flawed, it gives discretion over who is charged with criminal activity to the Planning Commission and not where it belongs in the Prosecutor's Office.

Certainly not the Planning Commission, who, could have requested a full review of the ultimate impacts of both the TVR and TAU's however just allowed the same old same old to continue, they never even question it.

The county is demanding as a condition of the permit, that it gets a permanent easement that runs with the land, forever, regardless of TVR use - to put whoever the County wants on the land to farm it - even if property is later sold and a "real farmer" bought the land - the county would still be able to put whoever it wants there to farm...forever.

permanent easement that runs with the land, forever, regardless of TVR use - to put whoever the County wants on the land to farm it

- seriously that only partially makes sense. technically a permit 'runs with the land', HOWEVER private property rights would prevail - they can't just say John Doe or his brother can freely come on your land and farm - really that is illogical and would never hold up in court.

requiring farming on farm-able land, no requirement for that...see an abundance of agricultural lots not used for ag.

"The county is demanding as a condition of the permit, that it gets a permanent easement that runs with the land, forever, regardless of TVR use - to put whoever the County wants on the land to farm it - even if property is later sold and a "real farmer" bought the land - the county would still be able to put whoever it wants there to farm...forever."tHAT IS SUCH bs, NEVER WILL FLY IN A COURT, IT'S JUST ANOTHER BS condition that will be removed later. You cannot make a landowner accept an arbitrary person or persons to come on their land and farm. Wow , so much BS at planning

Community impacts with the number of vacation rentals available in any one market, would be a reasonable fact to request. How many units require how much more police protection, fire, ambulance? Health, safety and welfare are all a responsible planning department concerns. Or at least they should be.

You should have called Dan or I for comment. We could have explained the lack of irony.

Earlier in the ag tvr process, Dan proposed a voluntary agreement among owners and the county for letting third-party farmers onto ag parcels that would otherwise be without any ag activity.

But what the county has now imposed, while denominated a "request" for an "ag easement" is actually a demand under threat of revocation of the owner's permit, should the county deem ag efforts on the property insufficient. That is an unconstitutional taking and we object to it on that ground.

The two thoughts to keep in mind together are: Facilitating win-win compromises = good. Unconstitutional, coercive government acquisitiveness = bad.

Think of us as liberals only without the coercive impulse.

(Were you there when I testified? I didn't see you. You should say hi).

How do these TVRs qualify for special permits? HRS 205-6(c) reads in part as follows:

The county planning commission may, under such protective restrictions as may be deemed necessary, permit the desired use, but only when the use would promote the effectiveness and objectives of this chapter.

How does a TVR on ag land "promote the effectiveness" of Chapter 205? By raising the value of ag land to the point that it is no longer affordable for farmers? By allowing resort development on ag land? Give me a fucking break. How would denying a special permit be a "taking"? How can they argue that they have an "investment backed expectation" to engage in resort activities on ag land? The county should forget the easement and deny the special permit, period.

Charley, while I don't necessarily support the county's ag "easement" concept as you present it (which is a different interpretation than the one Dan gave me, btw), could you please explain how you consider it an "unconstitutional taking" when a special permit is conditioned upon an applicant meeting certain requirements and then is revoked when those requirements are not met?

And no, I wasn't there when you testified, but I wish you would have remained through the entire hearing so you could have heard my testimony, and that of the other members of the public. Then we both could've said hi.

Mahalo nui Joan for your informative post. I can never make those meetings that are not convenient for most working people. I'm relegated to watching in dismay on tv after its all said and done. Jimmy just got voted chair again for the ? time. We need new blood w/ ethics and balls to make the right decisions. He should step down. Mahalo for your volunteerism but the decisions and inaction of our Planning Commission has been detrimental to the majority and beneficial to developers and spculators. Sick of the commission rubber stamping the planners recommendations instead of truly scrutinizing applicants and holding them accountable. Case in point, Coco Palms!

does this mean that if a property is awarded, gifted, blessed to receive the coveted TVR permit on one of say 50 CPR units, does it convey (run with the land) with the entire parcel of record with it, just one approved?